Allanson v Malingnem [2014] VUSC 110; Land Appeal Case 60 of 2004 (2 September 2014)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Land Jurisdiction)
Land Appeal Case No. 60 of 2004

IN THE MATTER OF: BATENNOUMOL LAND, LITZLITZ VILLAGE, MALEKULA

KALORIB ALLANSON:
1st Appellant

MORTEN EDWIN as representative of Family Saaeres:
2nd Appellant

NOEL SIMON:
3rd Appellant

DONEL MALINGNEM
1st Respondent

JOE ISHMAEL as representative of Family Malvonu:
2nd Respondent

FAMILY NATUNMAL:
3rd Respondent

MAY ABEL:
4th Respondent

MORTEN KEN:
5th Respondent

Hearing: 1 September 2014 at 11 am at Lakatoro, Malekula
Before: Justice Stephen Harrop and assessors Wesley Tawi and Shema Tasvallie
Appearances: 1st Appellant: W illie Daniel 1st Respondent: Billyson Nimbwen (by arrangement)
2nd Appellant: Daniel Yawha 2nd and 5th Respondents: George Boar
3rd Appellant: George Boar 3rd Respondent: Saling Stephens
4th Respondent and 5th Respondents: No steps taken

ORAL JUDGMENT OF 2 SEPTEMBER 2014

Introduction

1. There have been four,originally five, appeals against the Island Court Judgment dated 30th June 2004 in respect of the claim made by Kalorib Allanson to the whole of the Batennoumol land near Litzlitz village on Malekula and in respect of the counterclaims which were made by Donald Malingnem, Noel Simon, Family Malvonu, Family Natunmal, May Abel, Morten Ken, Family Edwin and Family Saeres. After many years of unsatisfactory and unacceptable delay and the loss of the Island Court file in the Port Vila Court house fire in 2007 the case is finally been set down for hearing this week in Lakatoro.
   
2. One of the appeals, that by Mr Allanson himself, represented by Mr Daniel, does not directly challenge the substance of the Island Court decision which declined most of his claim. He was left with only the part of the land which not claimed by others which was obviously a disappointing return for a person claiming the whole of the boundary. Ultimately that boundary was shared amongst four families. Rather, Mr Daniel, relying on a sworn statement of Mr Allanson dated 27th May 2009, argues that the process of the Island Court visit to the land was flawed in that his client was prevented from visiting several nasara, notably one nasara which was important to him that at Vetu, beyond the Lacatzcatz river. The inspection had started on one side of the river but according to Mr Allanson it did not proceed beyond that to the other side where these other nasara were.
   

Mr Allanson's evidence

3. In his sworn statement Mr Allanson attaches as exhibit A the map he produced to the Court in support of his claim to the whole boundary. He says that the initial inspection of the first part of the land involved all the parties and the Magistrate and the three Island Court Justices but when they got to the Lacatzcatz river he says the learned Magistrate then told him and his main witness Shedrack Fred that they were not to follow the Court party on its continued inspection on the other side of the river towards the area known as Dedcon.
   
4. He says in his evidence that he wanted to show the Island Court the nasara in that area which he says belong to him Vetu, Amelberev, Venjerjer and Tenop and also certain other historical sites and secret places which he had clearly marked on his map. Two of the latter sites which stand out are the snake tree and the rain stone. When the Island Court Judgment came out none of the land on that side of the river was land in respect of which Mr Allanson was declared custom owner; rather Donal Malingnem was declared the custom owner of all of it.
   
5. Mr Allanson appeals because he says he was denied natural justice namely the opportunity to attend those important sites and to explain to the Magistrate and the Justices why he should be declared the custom owner. Further, he says the process was unfair because Mr Malingnem was there and was no doubt able to make submissions and statements about his connection with the land which ultimately contributed to his success. Mr Allanson complains that he was not able to rebut or at least comment on anything that Mr Malingnem said.
   
6. In the five years since Mr Allanson filed that statement no other party has filed evidence rebutting what he says. I need to note here that Mr Stephens pointed out yesterday that at least he and perhaps some other counsel have not seen that statement until yesterday and so obviously their opportunity to file evidence in reply was not a realistic one. But the important person here is Mr Malingnem and he has been represented throughout by Mr Kilu, who for reasons which have not been directly explained to me by Mr Kilu at least, has not managed to attend this hearing. By arrangement Billyson Nimbwen has appeared although he is not a lawyer and has represented Mr Malingmen's interests. However I have taken into account what Mr Kilu said in his written submissions filed late last week. In discussing Mr Allanson's claim he acknowledges at paragraph 1 (d) that by contrast with other appellants, Mr Daniel's appeal book on behalf of Mr Allanson is "proper" and "supported by proper submissions as ordered by the Court on 11 June 2014".
   
7. Those submissions by Mr Daniel dated 18th August clearly raised this natural justice point and they referred to Mr Allanson's statement when incorporating the detailed amended notice of appeal dated 1st March 2010. So despite therefore knowing what Mr Allanson says about the wrongful interruption to the Island Court visit there has been no sworn statement produced by Mr Malingnem or anyone else to contradict it and I note that Mr Kilu's submissions do not address that issue.
   
8. However, as matter of fairness I decided it was necessary yesterday to allow cross- examination of Mr Allanson by all of the parties who wish to cross-examine him. Generally speaking he remained adamant that he had not been permitted by the Magistrate to continue the inspection on the other side of the river. Rather to my surprise and I think that of counsel he did say that the Magistrate and the Clerk, Wendy Raptigh had stayed behind with him so only the other three Justices and the other parties carried on with the inspections on the other side of the river. Mr Allanson did concede in cross-examination by Mr Nimbwen that he had visited the Amel Berev nasara on the other side of the river with everybody, including the Magistrate, despite the impression clearly given by paragraph 11 of his sworn statement to the effect that he had not been to Amel Berev .
   
9. He explained that that nasara is quite near the main road and that is where the two parts of the inspection party met up after the main part of the group had completed their inspection further in from the road, apparently including the Vetu nasara where it seems they went. Mr Allanson who of course is familiar with the Vetu nasara says that is about 500 meters inland from the road. But that concession aside he was adamant that he had not been allowed to go to the Vetu nasara and the important sites nearby. He did concede in cross- examination though (as I understood him he did volunteer this) that when he had been refused permission by the Magistrate, he had asked his younger brother Wetson to go but that was just to watch and listen and not to speak. He is not as knowledgeable in the custom areas that Mr Allanson wanted to visit and he is not the spokesperson for Mr Allanson.
   
10. I expressly asked Mr Allanson why he did not challenge the Magistrate's decision to prevent him going on the rest of the visit but he said he respected him and said nothing out of respect. So that is an outline of the evidence that has been given.
    

Submissions

11. Mr Daniel submits that natural justice has clearly been breached. There was also he says a critical breach of rule 9 under Order 18 of the then applicable Island Court (Civil Procedure) Rules 1984 which says:
    

"In every case where the claim is in respect of land, the Court shall visit the land before a reaching a decision in the case".

Here Mr Daniel says "the Court" split into two parts and without the Magistrate and Mr Allanson present its inspection of the Vetu nasara and other sites on that side of the river was not a visit by the Court and therefore did not comply with that rule.

12. Mr Daniel goes on to submit that the denial of natural justice and the breach of that rule had on the face it an obvious and significant consequence. Mr Malingnem who was present and able to make his case to the three Justices was ultimately successful in his custom ownership claim to the land on that side of the river and Mr Allanson failed.
    
13. So Mr Daniel submits these were significant procedural errors with real consequences and that they rendered the Island Court decision, in respect of that part of the land at least, invalid. He submits that Mr Allanson's appeal should be allowed and that the matter be sent back to a newly constituted Island Court to follow a proper process fair to everybody.
    
14. Mr Yawha, although his clients are not directly affected by the breach of natural justice of which Mr Daniel complains, supports the referral back to the Island Court. He has for some months in chambers conferences argued for this but his main point has been that because of the Courthouse fire, it is in any event virtually impossible for this Court properly to assess the Island Court decision. The absence of information supporting the decision of the Island Court means that this Court would have great difficulty in assessing whether it was a justifiable decision or not on the information provided to it. In particular Mr Yawha yesterday highlighted the absence of any transcript of the proceedings of the land visit itself such as would normally have been provided. If we had that we might know why the parties split into two and what was recorded by the larger part of the group who visited the Vetu nasara and other sites. Mr Yawha submits that a rehearing on a fair and proper basis cannot prejudice anyone because everyone will retain their fair chance to prove their claims.
    
15. The submissions in opposition were primarily made by Mr Stephens; these were adopted with limited additional points by both Mr Boar and Mr Nimbwen. Mr Stephens asked me to make adverse credibility findings against Mr Allanson having regard to the way he gave evidence and performed under cross-examination. He highlighted his failure to disclose in his statement that he had visited the Amel Berev land; indeed the sworn statement says that he did not. He also had failed to mention in his statement or in his evidence in chief that his younger brother had gone when he had been declined the opportunity.
    
16. Mr Stephens also suggested to Mr Allanson in cross-examination that because Mr Allanson had failed miserably to be persuasive at one of the site of the first nasara visited (Banganevenu),it was accepted by Mr Allanson that he had been ashamed by being called a liar and proved wrong by other parties, there that the real reason he did not go on the further inspection was that he did not wish to risk further embarrassment or further shame.
    
17. Mr Allanson denied that he had not wanted to visit those sites on the other side. I observe that had he voluntarily withdrawn his claim in respect of those sites one might have expected a reference to that on the judgment but there is nothing of that kind.
    
18. Accordingly Mr Stephens' contention remains a matter of speculation and there is no evidence to support it because the only witness before the Court denies it.
    
19. Overall though Mr Stephens submitted that when one looks at the various inconsistencies it would not be safe to rely on what Mr Allanson said in his statement. Mr Boar did not add much although he was concerned to be able to make submissions about his client's position if I were to allow the Allanson appeal; I assured him in that event that such an opportunity would be provided. His clients of course, indeed this is true of Mr Stephens' clients as well, are not directly affected by the Allanson appeal. That is a matter between Mr Allanson and Mr Malingnem strictly speaking. Mr Nimbwen supported the points made by Mr Stephens and Mr Boar and he argued that Mr Allanson's evidence was an insufficiently reliable basis for allowing the appeal. He also made the point that nasaras are owned by a big chief in an area and that simply being familiar with the nasara and able to talk about it did not mean you were entitled to custom ownership.
    

Discussion and Decision

20. Having read Mr Allanson's statement and seen him cross-examined, I find as a fact that he did not visit the important sites and nasaras on the far side of the Lacatzcatz river, except Amel Berev. I also find that these were sites which were clearly included in his claim as the map indicates. I further find that he did not visit the sites because the learned Magistrate prevented him from doing so.
    
21. I accept there is force in Mr Stephens' criticisms of Mr Allanson's evidence and the way that he gave it although I must say I am particular cautious about making any sort of adverse finding where evidence is being translated for me. It is surprising to say the least that Mr Allanson did not mention in his sworn statement that he had stayed behind with the Magistrate and the Clerk, nor the role assigned to his younger brother. It is also odd that he did not object to the Magistrate in any way. Respect or not, one would imagine that any party deprived of an opportunity to make his case on a particular issue would say at least something, albeit in a respectful manner.
    
22. But in the end I am not persuaded that Mr Allanson's evidence should not be relied on. I repeat there is no evidence from anyone else saying that he did visit those sites or disputing that he was held back by the Magistrate. If the truth is that Mr Allanson did visit those sites then there were any number of people who went to those sites who would be able to say very readily in a sworn statement that he was there.
    
23. In my view this conclusion is enough to warrant the allowing of the appeal on breach of natural justice grounds. The map he produced clearly shows that Mr Allanson was claiming ownership of the Vetu nasara or at least that that was a site clearly identified within the boundary he was claiming and he also referred to those important sites, the snake tree and the rain stone. He was deprived off the opportunity to visit and make his claim tangible and the opportunity to rebut what his opposing claimant Mr Malingnem said, if he could. So inevitably unbalanced and one-sided information was provided to the three Justices present.
    
24. It may be that if Mr Allanson had been there he would have been no more persuasive than he was at that earlier nasara but unless he is given the opportunity we will never know. His connection with the Vetu nasara, for example, may be much stronger than with the first nasar that he visited or it may be weaker or as weak.
    
25. I do not know why the Magistrate held Mr Allanson back and it is rather puzzling to me as to why that happened. Magistrates know just as well as Judges about natural justice. I do not have the opportunity to ask the Magistrate and, unlike parties, judicial officers are not accorded natural justice. Challenges to their decisions are made solely on what their judgment contains and on the information before the Court on an appeal.
    
26. As Mr Yawha says because of the fire any record of reasons for why that may have happened have been lost. It is difficult to understand why Mr Allanson was prevented from further taking part and I start on the basis that the Magistrate must have had a good reason for that. I may be wrong but perhaps the reason is that he thought that Mr Allanson's claim did not go beyond the river even though the map, I think, makes it clear that it did. I say that because, as Mr Daniel has pointed out, page 4 of the judgment, the Court records that Mr Allanson submitted that the nasara of Vetu was outside the boundary claimed. So it may be that there was a misunderstanding about the extent of the boundary claimed by Mr Allanson.
    
27. But misunderstanding or not, I can see no justification for the party being split up. I accept Mr Daniel's submissions that both the Magistrate and Mr Allanson (and all the other parties and the three justices) had to visit all the sites in order for the Court to discharge its obligation to visit the site and to then reach a properly-informed decision. That is so as a matter of natural justice because all four deciding members of the Court must receive the same information in order to assess, discuss and judge it fairly.
    
28. On the face of Mr Allanson's evidence the Magistrate did not receive any first- hand information about some of the sites the three other justices visited.
    
29. Nothing is more important to ni-Vanuatu people than custom land rights and a family's connection to their custom land. They are the very essence of a family's life, they are its home base and a great responsibility rests on the current representative of the family to sustain or advance a claim in respect of land with which the family has or claims to have a connection.
    
30. It is precisely because of this that natural justice is even more important than ever. The number of people who have attended this Court this week only reinforces that. It is essential that no party to a land case is left aggrieved at the process by which custom land issues are resolved because otherwise we end up with a permanently aggrieved party and all of the family that lies behind him.
    
31. In a sense the lesser of two evils here is to have a disappointed and delayed Mr Malingnem rather than an aggrieved Mr Allanson. I expect Mr Malingnem will be disappointed by the view I take of this case but, to put it in relevant terms, how would he have felt if the Magistrate and the other Justices had taken Mr Allanson to the sites on the other side of the river and not allowed him to go, let alone state his case in respect of those sites? Or to put it in an immediate context, how would he feel if at yesterday's hearing I had made him leave the Court room and refused Mr Nimbwen any opportunity to cross-examine Mr Allanson? Whatever decision I had then come to, Mr Malingnem would be understandably aggrieved at the process and that is what must be avoided at all costs.
    
32. In addition to the simple and fundamental natural justice point I accept Mr Daniel's other submission that the Court visit clearly breached the rule to which I have referred. "The Court" in the context of this kind of case must mean all four of the deciding judicial officers and in the context of a site visit it must also include representatives of all of the nine claimant parties. It cannot mean only some of the Court but not all of it.
    
33. That conclusion is reinforced when the context of this being a very important land claim is appreciated. Mr Daniel and Mr Yawha both submitted, and nothing was said in opposition to this, that Island Court land claims are really in two parts. They involve evidence first being given in Court but then it being tested by a field visit where an apparently plausible claim (as far as the impression left in Court is concerned) may be found seriously deficient. Although it is less likely the converse may also apply: a claim which may seem not particularly strong in Court may be reinforced when the Court sees the connection that the claimant has with the particular piece of land and when he is able to demonstrate the extent of the knowledge and family connection with that piece of land.
    
34. Indeed this is what happened regarding Mr Allanson's claim to the Banganaevenu nasara. In Court he had established, according to the judgment, a valid claim based on the patrilineal system. But he then "entirely failed" to substantiate sufficient evidence to validate his claim when he was on the site. The Court stated as supporting that conclusion at page 5 of the judgment: "It is noted that he has very little knowledge about the area concerned and seemed uncertain about the locality of the nasaras. For instance, during the visit he identified a nasara as Banganaevenu and he was proven wrong".
    
35. This reasoning process by the Island Court demonstrates the critical importance of a thoroughly fair site visit and that is no doubt why rule 9 of order 18 is in place. Who knows what would have happened if Mr Allanson had visited the Vetu nasara with Mr Malingnem? He may have been just as lacking in knowledge and persuasion as he was in relation to that earlier nasara. But on the other hand, he may have been able to prove Mr Malingnem was a liar just as others had proved that he was to the satisfaction of the Court in respect of that earlier nasara. The opportunity for him to stake his claim and to rebut and comment on Mr Malingnem's claim was wrongly withheld from him and natural justice requires that he have the chance to prove that he ought to have been properly declared the custom owner of the land on the other side of the river. If Mr Malingnem has a good claim then he will succeed again.
    
36. For these reasons I am persuaded that Mr Allanson's appeal must be allowed with the claim being sent back to the Island Court, for rehearing before a differently-constituted Court under section 23 (b) of the Island Courts Act.
    
37. I emphasize to Mr Allanson and to Mr Malingnem and to anyone else disappointed by this decision that this is not a finding about the merits of Mr Allanson's claim or about the merits of Mr Malingnem's claim, rather it is simply a decision based on the flaws in the process followed in reaching the decision that the Court reached. A proper process may lead to exactly the same decision and, as I have said, if Mr Malingnem has in truth a good claim he will succeed again. Alternatively there may be a different result.
    
38. I want to record here that although I am sitting with two custom assessors this has been my own decision because an allegation of breach of natural justice and of a procedural rule is quintessentially a judicial decision and it has not been a matter on which I needed to seek custom advice. The assessors did not know what my decision was going to be until they have listened to it as you have. I emphasize therefore that any errors in this decision or the outcome are entirely my responsibility. The only matter on which did receive brief advice was simply as to the importance of site visits in this kind of context and what I was told is absolutely consistent with what Mr Daniel and Mr Yawha were saying, and as I have said there were no submissions in opposition to that.
    
39. This decision deals just with the appeal by Mr Allanson and in effect only with the dispute he has with Mr Malingnem about that area of land on the far side of the Lacatzcatz river. Their approach from this point forward will no doubt be influenced by the outcome of the other sub-appeals which are before me this week. We have called them sub-appeals 60B, 60C and 60 D, Mr Allanson's one being 60A. I will shortly ask counsel for the parties involved in those appeals for submissions about the effect if any of this decision on those 3 sub-appeals.
    
40. What I will draw to the attention of Mr Allanson and Mr Malingnem is the reality that since this claim was lodged and indeed since the Island Court Decision we now have the Custom Land Management Act 2013 which is a different process for resolving this kind of dispute. It is open to them, if they agree, to follow that process instead and given what might be called their rather dispiriting experience of an Island Court hearing, judgment and long appeal to the Supreme Court, and an order for rehearing, they might well think that any other option available would be preferable to having a rehearing before the Island Court. But that is a matter for them and I express no view; I simply want to ensure that Mr Allanson and Mr Malingnem and are aware of the possibility and consider it carefully.
    
41. I have not sought submissions about costs in relation to Mr Allanson's appeal. I note that the Island Court said the parties should pay their own costs and my preliminary view, unless there are strong submissions to the contrary, is that that should occur here as well. That is because it is not Mr Malingnem's fault that the Island Court erred in its process and it remains to be seen what the outcome will be at the re-hearing. Until it is known who has the better claim, my view is that costs should lie where they have fallen. Mr Daniel will have leave to pursue any application for costs by filing a memorandum within 14 days of today if he is instructed to pursue that matter.
    
42. I make a subsidiary and interim order that the status quo so far as the use and occupation of the land in respect of which Mr Malingnem was declared custom owner will remain until further order of the Island Court. This is simply to preserve the position so that no party is prejudiced until the merits of the issues are properly and fairly resolved. I grant leave however for either Mr Allanson but particularly Mr Malingnem to make an application to the Court to vary that order if for any reason that is thought to be justified.
    

BY THE COURT